Advance Cable Company, LLC, et al v. Cincinnati Insurance Company
Filing
Filed opinion of the court by Chief Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6669884-1] [6669884] [14-2620, 14-2748]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐2620 & 14‐2748
ADVANCE CABLE COMPANY, LLC, and PINEHURST
COMMERCIAL INVESTMENTS, LLC,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
CINCINNATI INSURANCE COMPANY,
Defendant‐Appellant, Cross‐Appellee.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
No. 13‐cv‐229‐wmc — William M. Conley, Chief Judge.
____________________
ARGUED DECEMBER 11, 2014 — DECIDED JUNE 11, 2015
____________________
Before WOOD, Chief Judge, and FLAUM and MANION, Cir‐
cuit Judges.
WOOD, Chief Judge. On April 3, 2011, Middleton, Wiscon‐
sin, was pelted with hail. Predictably, some structures were
damaged, including the metal roof of a building located at
2113 Eagle Drive. The owners, Advance Cable Company and
Pinehurst Commercial Investments (to which we refer collec‐
tively as Advance), submitted a claim to their insurance
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company, Cincinnati Insurance, but they were not satisfied
with its response. Cincinnati took the position that the dam‐
age was cosmetic and thus excluded from the policy, while
Advance thought the damage was more extensive and cov‐
ered by the policy; indeed, Advance believed it was entitled
to reimbursement for a new roof. It brought this diversity
action in federal court to resolve the matter. The district
court granted summary judgment for Advance on the cover‐
age question, but it rejected Advance‘s argument that Cin‐
cinnati acted in bad faith when it refused to pay for the new
roof. We affirm.
I
In 2010, Advance obtained an insurance policy from Cin‐
cinnati on two properties in Middleton, one of them at 2113
Eagle Drive. (Pinehurst entered the picture because it owned
the building and was added to the policy as a named in‐
sured in 2011. Its presence has no effect on our analysis.) On‐
ly a few of the policy’s provisions concern us. Under the
heading “Coverage,” the policy says, “We will pay for direct
physical ‘loss’ to Covered Property at the ‘premises’ caused
by or resulting from any Covered Cause of Loss.” The policy
defines “Covered Causes of Loss” as “risks of direct physical
loss,” and then defines “loss” as “accidental loss or dam‐
age.” It does not define “direct” or “physical.” The parties
do not dispute that the “Covered Property” includes the
building at 2113 Eagle Drive; that building is specifically
listed in the “Schedule of Locations” in the policy.
After the hailstorm rolled through Middleton in April
2011, Mike Larson, Advance’s president, filled out a form re‐
porting damage to the Eagle Drive property and another
building. That same month, Larson inspected the roof at
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2113 Eagle Drive with Curt Jorgenson, a senior claims repre‐
sentative for Cincinnati. Jorgenson spotted some dents, but
he saw little other evidence of damage. In June 2011, Jorgen‐
son sent Larson an “estimate for hail damage to your build‐
ing,” in which he “note[d] some dents to soft metal roof
vents and AC fins” but stated that he “did not observe any
damage to roofing.” Jorgenson estimated that the building
required $1,894.74 in repairs. The next month, Jorgenson
sent Larson a check representing the estimated damages to
both of Advance’s buildings, minus a $1,000 deductible, for a
total of $1,512.70.
The story did not end there. Approximately six months
later, in January 2012, Advance was considering selling the
Eagle Drive building. The potential buyer, Welton Enterpris‐
es, decided to have the roof inspected. Unlike Jorgenson,
Welton’s inspector reported that there was “definitely hail
damage.” (Cincinnati disputed at summary judgment that
the Welton inspector was referring to the Eagle Drive prop‐
erty, but the district court properly found no genuine dis‐
pute of fact on this question given the cover email’s reference
to “the Eagle Drive roof.”) This opinion prompted Advance
to ask Jorgenson to reopen Advance’s claim. He did so and
arranged for a new inspection of the roof. The resulting re‐
port covered both of Advance’s buildings in Middleton. It
noted that “[m]etal roof panel denting characteristic of hail
impact was found on several buildings. Dents related to hail
impact varied in size from barely discernable to approxi‐
mately 1” in 1 [sic] diameter.” Under the heading “Discus‐
sion,” the report opined that the denting “will not affect the
performance of the panels (roofs) or detract from the pan‐
els[’] (roofs[’]) life expectancy. … The denting that occurred
as a result of hail impact was relatively minor and cannot be
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view [sic] from ground level.”
A few months after receiving this report, Advance sold
the 2113 Eagle Drive building to Welton, without any further
developments relating to its claim with Cincinnati for hail
damage to the roof. Believing that Cincinnati had breached
its contract with Advance to cover damage to the Eagle
Drive building and that its denial of coverage was in bad
faith, Advance sued Cincinnati in April 2013. Both Advance
and Cincinnati moved for summary judgment. Advance
asked the district court to rule that the insurance policy cov‐
ered the hail damage; Cincinnati asked the court to find that
coverage was excluded and also to grant summary judgment
against Advance on its bad faith claim. As we mentioned
above, the district court held that the policy did cover the
hail damage, but that Cincinnati’s refusal to acknowledge
this was not done in bad faith. Following the court’s sum‐
mary judgment decision, the parties stipulated that the sole
issue remaining for trial was the amount of money necessary
to replace the damaged roof. They then stipulated that this
amount was $175,500, and the court entered a final judgment
in that amount in favor of Advance.
II
We review de novo a district court’s decision to grant
summary judgment. Doe v. Archdiocese of Milwaukee, 772 F.3d
437, 440 (7th Cir. 2014). In reviewing cross‐motions for
summary judgment, we take the motions one at a time and
then, as usual, construe all facts and draw all reasonable in‐
ferences in favor of the non‐moving party. See United States
v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014). Sum‐
mary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact and
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the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).
We turn first to Advance’s claim that its policy with Cin‐
cinnati covered hail damage to the roof. The law of Wiscon‐
sin furnishes the applicable rule of decision. 28 U.S.C. § 1652.
Wisconsin courts construe insurance policies in the same
manner as they would any contract. Strauss v. Chubb Indem.
Ins. Co., 771 F.3d 1026, 1030 (7th Cir. 2014). We must ascertain
what a reasonable person in the position of the insured—
here, Advance—would understand the policy to mean. Blum
v. 1st Auto & Cas. Ins. Co., 786 N.W.2d 78, 83 (Wis. 2010).
Ambiguous language (that is, language that is “susceptible
to more than one reasonable interpretation”) is to be con‐
strued against the insurer and in favor of the insured. State
Farm Mut. Auto. Ins. Co. v. Langridge, 683 N.W.2d 75, 81 (Wis.
2004) (internal quotation marks omitted).
The heart of the dispute between the parties concerns the
meaning of the term “direct physical loss” in the policy. In
the end, however, we find the coverage question to be fairly
straightforward. Neither Advance nor Cincinnati disputes
the meaning of the term “direct” in the policy. Although the
policy does not elaborate on that word, common sense sug‐
gests that it is meant to exclude situations in which an inter‐
vening force plays some role in the damage. No such force
was present here: to the extent the roof was damaged at all,
everyone agrees that the hailstorm was the culprit.
The parties devote more discussion to the word “physi‐
cal,” which like “direct” is not defined in the policy. Cincin‐
nati contends that “physical” for purposes of the policy
means “material,” although it unhelpfully does not suggest a
definition of “material.” We can think of several possibilities:
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it might be a synonym for “physical,” as in “formed or con‐
sisting of matter”; or it might connote “pertinent,” or “cen‐
tral,” or “essential.” Cincinnati advocates the latter meaning
and supports its position with a single district court deci‐
sion, Crestview Country Club, Inc. v. St. Paul Guardian Ins. Co.,
321 F. Supp. 2d 260 (D. Mass. 2004). We do not find Crestview
to be especially helpful. It concerned whether an insurance
policy covered damage from a severe wind storm to a golf
course. The storm destroyed a notable ash known as the
“Poltergeist Tree,” which loomed above the thirteenth hole.
No one disputed that the policy covered replacement of the
tree. But the plaintiff wanted more: it argued that the insur‐
ance company also had to pay for the redesign of the thir‐
teenth hole, because the loss of the Poltergeist Tree had inef‐
fably altered the hole’s character, even though the hole itself
was not damaged. The district court held that intangible
changes to the hole’s character did not count as “direct phys‐
ical loss or damage to the golf course grounds” and thus did
not trigger coverage of changes to the hole. Id. at 264. We fail
to see the resemblance between Crestview and this case. Ad‐
vance is not asking for coverage of intangible damage. Ra‐
ther, it is claiming that hail caused visible indentations to the
surface of its roof. This denting changes the physical charac‐
teristics of the roof and thus satisfies that language of the
policy.
The next question is what the term “loss” means here.
The policy (at last) offers an answer: it defines “loss” as “ac‐
cidental loss or damage.” The district court, in deciding that
this concept encompasses all hail denting—both dents that
diminish the functionality of the roof and dents that may be
only cosmetic—emphasized the disjunctive nature of the
definition. The policy covers loss or damage. This indicated
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to the district court that even without a measurable “loss” in
value or in function, “the policy expressly contemplates the
possibility that there may still be ‘damage,’ presumably giv‐
ing it a different meaning than the word ‘loss.’” This was a
sensible conclusion, and Cincinnati has given us no reason to
believe that inclusion of the phrase “or damage” in the defi‐
nition of loss was superfluous. In fact, it has offered no ex‐
planation for the inclusion of both words, despite, we as‐
sume, having written the policy.
Instead, Cincinnati urges us to define “loss or damage”
to mean “harm.” It then makes the assumption that the
dents caused by the hail did not harm the roof enough to
diminish its function or value. No harm, no foul, it says: if
this is the case, then it believes that the policy does not re‐
quire it to pay to replace the roof. The problem with this
analysis is that it bears no relation to the language of the pol‐
icy. There is no exception to the definition of “loss” for cos‐
metic damage, or any other kind of particular damage. Had
Cincinnati wished to exclude cosmetic damage from cover‐
age, it should have written the policy that way. As Advance
points out, Cincinnati contemplated instituting just such an
exclusion in other policies after the events of this case. Even
if it is unclear whether the policy intended “loss” to be lim‐
ited to harm from diminution of value or functionality, Wis‐
consin law requires us to construe the language in favor of
Advance, not Cincinnati. The district court cases on which
Cincinnati relies are either distinguishable or unpersuasive.
The last argument that warrants discussion relates to the
concept of economic waste. Cincinnati contends that it
should not have to pay for an entirely new roof for Advance
simply because the roof sustained denting. In making this
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argument, Cincinnati is attempting to board a ship that has
already sailed. The issue before us is not damages; it is cov‐
erage. As Cincinnati acknowledges, economic waste is a
damages concept. So it is cause for head‐scratching when
Cincinnati argues, without much further explanation, that
“the economic waste doctrine provides support for the con‐
clusion that cosmetic denting does not constitute ‘direct
physical loss.’” Perhaps this is simply a variation on Cincin‐
nati’s argument that damage must be substantial or “struc‐
tural” in order to qualify as “physical,” but that is not what
the policy says. The policy requires Cincinnati to compen‐
sate Advance for “direct physical loss” to its Eagle Drive
building, and it defines “loss” as “loss or damage”; the hail,
in denting the building’s rooftop, physically and directly
damaged it. Thus the district court’s decision to grant Ad‐
vance summary judgment on this question was correct.
Cincinnati finally argues that if we were to reverse the
district court’s grant of summary judgment to Advance on its
breach of contract claim, we should also find that Advance
breached its duty of good faith and fair dealing in delaying
its disclosure of an expert report about injury to the Eagle
Drive rooftop. Because we affirm the district court’s grant of
summary judgment to Advance on the issue of coverage, we
need not reach this argument.
III
We now turn to Advance’s cross‐appeal, in which it ar‐
gues that the district court erred by granting summary
judgment in Cincinnati’s favor on its claim that Cincinnati’s
decision to deny coverage for the hail denting was undertak‐
en in bad faith. The court found that the undisputed material
facts showed that it was reasonable, even if incorrect, for
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Cincinnati to refuse to pay Advance’s claim because it did
not believe Advance suffered “loss or damage” from the hail
damage.
The courts of Wisconsin permit insured parties to bring
bad faith claims against their insurance providers. A plaintiff
bringing such a claim must show two things: “‘the absence
of a reasonable basis for denying benefits of the policy and
the defendant’s knowledge or reckless disregard of the lack
of a reasonable basis for denying the claim.’” Brethorst v. All‐
state Prop. & Cas. Ins. Co., 798 N.W.2d 467, 474 (Wis. 2011)
(quoting Anderson v. Cont’l Ins. Co., 271 N.W.2d 368, 376
(Wis. 1978)). The Supreme Court of Wisconsin has character‐
ized the first of these elements as objective, and the second
as subjective. Weiss v. United Fire & Cas. Co., 541 N.W.2d 753,
757 (Wis. 1995). The objective element tests “whether the in‐
surer properly investigated the claim and whether the re‐
sults of the investigation were subject to a reasonable evalua‐
tion and review.” Brown v. Labor & Indus. Review Comm’n,
671 N.W.2d 279, 287–88 (Wis. 2003). The subjective element
asks whether the insurer was aware that there was no rea‐
sonable basis for denial, or that it displayed “reckless disre‐
gard of a lack of a reasonable basis for denial or a reckless
indifference to facts or to proofs submitted by the insured.”
Anderson, 271 N.W.2d at 377.
We take it as a given that the policy at issue required cov‐
erage of hail damage to Advance’s roof. But that does not
mean Cincinnati’s investigation and subsequent evaluation
that coverage was lacking were unreasonable. Cincinnati’s
reading of the policy, while wrong, was not beyond the pale;
we already have noted that there are several plausible read‐
ings of, for example, the term “physical,” and that Cincinnati
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was able to find federal cases that provided some support
for its position. Advance’s argument amounts to a proposed
rule that would require a finding of bad faith any time an
insurer does not prevail in its reading of a policy. This strikes
us as draconian. It is also worth noting that Cincinnati
worked with Advance on the claim for a time, making mul‐
tiple visits to the Eagle Drive property to inspect the roof
and extending an offer of compensation, albeit one that was
far lower than Advance believed was proper.
Advance nonetheless argues that Cincinnati should have
known its position contradicted that of the American Associ‐
ation of Insurance Services (AAIS), which made its thoughts
on cosmetic damage known in a 2013 article in Viewpoint
magazine, an AAIS publication. There, Advance contends,
AAIS noted that its standard property insurance forms do
not distinguish between “physical damage that affects only
the property’s appearance” and damage affecting the prop‐
erty’s function. But Advance does not contend that Cincin‐
nati knew of these forms or this article, let alone used them
or understood them to be an industry standard. Advance al‐
so points to Cincinnati’s 2013 filing with the Wisconsin in‐
surance commissioner. In that filing, it sought approval of “a
new optional endorsement” permitting it to exclude cosmet‐
ic damage from its policies. Advance sees in this filing an
implicit acknowledgment from Cincinnati that its position
that cosmetic damage was excluded from its coverage was
“baseless” back in 2011 and 2012, when the events of this
case occurred. This is pure speculation. A 2013 filing says
nothing about what Cincinnati knew or did not know in
2011. Regardless, even if the filing had occurred in 2011, it
would fail to show that Cincinnati’s contrary position in the
current case is not reasonable or that Cincinnati was reckless
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in denying coverage here. Sometimes policies are amended
for purposes of clarification; sometimes for purposes of
change. The district court was correct not to place any
weight on this after‐the‐fact development.
As for Cincinnati’s investigation, Advance contended at
oral argument that there is no evidence Cincinnati looked at
Advance’s policy before denying coverage—that it failed to
“show its work,” to use Advance’s phrase. Advance observes
that Cincinnati at one point retained an attorney, but not to
analyze coverage. Advance believes that this suggests that
Cincinnati was anticipating litigation over its predetermined
denial of coverage. This argument is also speculative and
does not “suggest” one thing or another about whether Cin‐
cinnati intended to deny coverage before evaluating Ad‐
vance’s claim. Companies are permitted to hire attorneys to
assess their legal positions without being suspected of bad
faith. Advance’s argument would require us to hunt for a
sharper line of demarcation between an insurance compa‐
ny’s various stages of legal analysis than we have any busi‐
ness drawing. In any event, the evidence in the record is in‐
consistent with these musings: Cincinnati twice investigated
the rooftop, calculated an estimate for coverage, reopened
the claim when Advance asked it to, and has relied on cases
in support of its arguments. Advance’s argument that Cin‐
cinnati should have “shown its work,” right down to reveal‐
ing the dictionary definitions the company reviewed inter‐
nally when evaluating coverage, goes well beyond anything
that the law requires to defeat an allegation of bad faith.
IV
The insurance policy that Cincinnati sold to Advance
covered any direct physical loss or damage to Advance’s Ea‐
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gle Drive property in Middleton, Wisconsin. We agree with
the district court that, as applied here, the policy covered the
hail damage Advance’s building suffered in April 2011. We
therefore AFFIRM the district court’s decision granting Ad‐
vance’s motion for partial summary judgment on the reach
of the insurance policy. We also agree with the district court’s
decision to grant Cincinnati summary judgment on Ad‐
vance’s bad faith claim, and AFFIRM that decision as well.
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